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Willie Sumpter v. Superintendent L. Sears

January 5, 2011

WILLIE SUMPTER, PETITIONER,
v.
SUPERINTENDENT L. SEARS, OGDENSBURG CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

FOR ELECTRONIC PUBLICATION ONLY

MEMORANDUM & ORDER

Presently before the court is petitioner Willie Sumpter's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 3-1, Petition ("Pet.").) Respondent moves to dismiss the petition on the ground that it is time-barred. (ECF No. 12, Notice of Motion to Dismiss the Petition for a Writ of Habeas Corpus; ECF No. 13, Memorandum of Law in Support of the Motion to Dismiss the Petition for a Writ of Habeas Corpus ("Resp. Mem.").) For the reasons set forth below, the petition for a writ of habeas corpus is dismissed in its entirety as time-barred.

BACKGROUND

On August 19, 2008, petitioner filed*fn1 the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally ECF No. 3-1, Pet.) The petition arises from petitioner's conviction, after a jury trial in New York Supreme Court, Queens County, of Robbery in the Second Degree, in violation of New York Penal Law § 160.10(2)(b), and Menacing in the Second Degree, in violation of New York Penal Law § 120.14(1). (ECF No. 14, Declaration in Support of Motion to Dismiss the Petition for Writ of Habeas Corpus ("Lyons Decl.") at ¶ 2.)*fn2 On October 2, 2003, petitioner was sentenced to threeand- a-half years in custody and five years of post release supervision. (Id., Ex. C, at 12.)

Petitioner, through counsel, appealed his conviction to the Appellate Division, Second Department, arguing that his due process rights were violated because: (1) the identification line-up was composed of "fillers" who were appreciably different in appearance from petitioner; and (2) a police witness improperly bolstered an eyewitness's identification of petitioner. (See generally id., Ex. D.) Petitioner also filed a pro se appeal with the Appellate Division, Second Department, arguing, inter alia, that his trial counsel provided ineffective assistance of counsel. (See generally id., Ex. E.) The Appellate Division unanimously affirmed the conviction on March 14, 2006, finding that "[t]here is no requirement that a defendant in a lineup be surrounded by individuals who are nearly identical to him in appearance." (Id., Ex. I, at 1.) The Appellate Division further held that "[i]nsofar as we are able to review the defendant's claim of ineffective assistance of counsel, the defense counsel provided meaningful representation.") (Id., Ex. I, at 2.) Petitioner applied to the New York Court of Appeals for leave to appeal. (See generally id., Ex. J.) The People opposed the application, (see generally id., Ex. K.), and leave was denied on July 14, 2006, (see generally id., Ex. L).

Subsequently, petitioner filed pro se motions under C.P.L. §§ 440.10 and 440.20 to vacate the judgment of conviction and sentence, arguing that his sentence was excessive and that his trial and appellate counsel were ineffective. (See generally id., Exs. M, N.) The trial court denied both motions in an order dated May 1, 2007. (See generally id., Ex. P.)

Petitioner filed the instant federal habeas corpus petition on August 19, 2008. The petition was originally filed in the United States District Court for the Southern District of New York and was thereafter transferred to this court on February 5, 2009. Petitioner claims that he is being held in state custody in violation of his federal constitutional rights. On March 17, 2009, the court ordered petitioner to show cause why the petition should not be dismissed as time-barred. (ECF No. 4, Memorandum and Order, dated March 17, 2009.) Petitioner responded on April 16, 2009. (ECF No. 6, Petitioner's Affirmation ("Pet. Aff."), dated April 16, 2009.) On June 6, 2009, the court ordered respondent to respond to the petition. (ECF No. 7, Order, dated June 6, 2009.) Respondent filed a motion to dismiss the petition on September 11, 2009, (ECF No. 13, Resp. Mem.), and petitioner replied on October 27, 2009, (ECF No. 16, Response Affirmation to Notice of Motion to Dismiss Petition for Writ of Habeas Corpus ("Pet. Reply Aff."), dated Oct. 27, 2009).

DISCUSSION

A petition for a writ of habeas corpus filed by a person in state custody is governed by, inter alia, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA imposes a one-year statute of limitations for seeking federal habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1); see Lawrence v. Florida, 549 U.S. 327, 331 (2007); Saunders v. Senkowski, 587 F.3d 543, 546 (2d Cir. 2009); Clark v. Artus, No. 09-CV-3577, 2010 U.S. Dist. LEXIS 33096, at *8 (E.D.N.Y. Apr. 1, 2010). Pursuant to the AEDPA, the limitation period runs from the latest of - (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1); see also Clark, 2010 U.S. Dist. LEXIS 33096, at *8-9. Because petitioner states no facts indicating that subsections (B)-(D) apply, the court will examine subsection (A).

The one-year limitation period may be tolled for statutory or equitable reasons. Pursuant to the AEDPA, the limitations period is tolled while a state prisoner seeks post-conviction relief in state court:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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